A division bench led by Justice AS Oka has also directed the centre to explain the reason for the delay in taking a decision despite repeated representations from the couples.

The court was hearing a plea filed by two San Francisco couples who came to India in 2015 looking for a surrogate, after they failed to conceive a child biologically.(HT File)

The Bombay high court has asked the Directorate General of Foreign Trade (DGFT) to decide by February 8 whether it will allow the two American couples to take back their ‘frozen embryos’ from a city hospital.

A division bench led by Justice AS Oka has also directed the centre to explain the reason for the delay in taking a decision despite repeated representations from the couples. In view of the new surrogacy rules, the court had previously asked the Centre to “make an exception” on humanitarian grounds and take a “reasonable and swift decision”.

The court was hearing a plea filed by two San Francisco couples who came to India in 2015 looking for a surrogate, after they failed to conceive a child biologically. They brought eight frozen embryos, found surrogates and entered into a written contract with them, according to the rules in place at the time.

Before the embryos could be ‘implanted’ into the surrogates’ wombs through IVF, the surrogacy rules in India changed with the introduction of the Surrogacy (Regulation) Bill, 2016. The rule now allows only ‘altruistic’ surrogacy for childless Indian couples who have been married for at least five years. It also mandates that the surrogate mother be a “close relative” of the couple.

To ensure implementation of the new rules, there is also a ban on the import and export of frozen embryos. So when the two couples decided to return to their country, the government disallowed their plea of taking back their eight embryos.

They had first approached the HC in September last year. The court had asked the centre for its response. Then, in a subsequent hearing, the court directed the centre and the DGFT, which woks under the ministry of commerce and industry, to apply their mind and make an exception for the couples considering that had followed all rules.

On November 5, the couples wrote to the DGFT requesting it to take a decision but failed to get a response.

In the hearing earlier this week, the union government told the court that the DGFT was yet to make up its mind.